SECTION 37

DUTY OF FAIR REPRESENTATION COMPLAINT

CANADA LABOUR CODE

Complainant

NAME:
ADDRESS:
EMAIL ADDRESS:
TELEPHONE NUMBER(S): () () FAX: ()
EMPLOYMENT • DATE OF HIRE:
• DATE OF TERMINATION (if applicable):
NAME OF REPRESENTATIVE OR COUNSEL (if applicable):
ADDRESS:
EMAIL ADDRESS:
TELEPHONE NUMBER(S):() () FAX: ()

Bargaining Agent

NAME OF UNION:
ADDRESS:
EMAIL ADDRESS:
TELEPHONE NUMBER(S):() () FAX: ()
NAME AND POSITION OF UNION REPRESENTATIVE:

(RDCMS# 333933 - Date revised: 2011-08)

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CANADA INDUSTRIAL RELATIONS BOARD

Section 37–Duty of Fair Representation Complaint–Canada Labour Code

Employer

NAME OF COMPANY:
ADDRESS:
EMAIL ADDRESS:
TELEPHONE NUMBER(S): () () FAX: ()
NAME AND POSITION OF COMPANY REPRESENTATIVE:

I–Before You Start

This form is intended to assist you in providing the type of information required for making a section37 duty of fair representation complaint. Please refer to the Board’s Information Circular No.11-05 and its decision in Virginia McRaeJackson., 2004 CIRB 290, posted at which will help you to understand the Board’s process and procedures. These reference materials may also be obtained from the Board’s regional offices.
Section 37 of the Code prohibits a trade union, or any one of its representatives, from acting in a manner that is arbitrary, discriminatory or in bad faith with respect to your rights under the collective agreement. In most cases, a trade union has the right to decide whether to take a grievance to arbitration or to settle a grievance, even if you are not in agreement. However, the union must not make this decision in an arbitrary, discriminatory or bad faith manner.
The Board will examine your complaint having regard to the Code and the Board’s extensive case law on section 37. It is your responsibility to provide the Board with all of the information that is necessary for it to decide your complaint. The information provided in your complaint must be sufficient to allow the Board to reasonably conclude that there has been an apparent violation by the union of its duty of fair representation. In other words, the Board will ask whether, even if it accepts all of your allegations as being true, the facts indicate that the union may have breached its duty. The Board may dismiss a complaint if this initial threshold is not met.
As you fill out this form, you may use additional pages if necessary and PLEASE PRINT CLEARLY.

II–General Information Concerning this Complaint

A–Nature of the Incident
Please indicate the nature of the incident or issue respecting your rights under the collective agreement regarding which the union was to represent you:
Termination of employmentSeniority rights
Other disciplinary actionCollective bargaining issue
Workplace accommodation
Other (please specify)
B–Nature of the Complaint
Please indicate the nature of your complaint against the union (the following examples are for illustration purposes only):
Grievance not referred to the grievance procedure
Grievance settled without your consent
Grievance not referred to arbitration
Union did not communicate its decision to you
Other (please specify)

III–Duty of Fair Representation

Please describe, in the applicable category below, why you believe that your union acted in a manner that was arbitrary, discriminatory or in bad faith with respect to your rights under the collective agreement.

A–Arbitrary Conduct
Arbitrary conduct by a trade union generally means that a union has failed to investigate a grievance or issue or has handled the case in a superficial manner. It does not mean, however, that a union cannot make mistakes or that it must always be correct in every assessment it makes.
B–Discriminatory Conduct
A trade union must not discriminate against an employee on a ground such as age, race, religion, sex or medical condition. It also must not treat individuals or groups of employees differently based on unreasonable or irrational grounds. However, not every instance of differential treatment is discriminatory.
C–Bad Faith Conduct
A union must not act with an improper purpose. Conduct or decisions of the trade union that were motivated by personal feelings of hostility or ill will towards you may constitute bad faith.

IV–Chronological Summary

In addition to answering the questions above, please provide a chronological summary of the facts and circumstances in support of this complaint. Be sure to include details such as the dates on which events occurred, the date of any grievance filed, the names of union officials with whom you dealt, the names of any witnesses, etc.

V–Supporting Documentation

Please list any relevant documents in support of your complaint. For example, documents relating to the underlying incident, such as the termination letter or other disciplinary letters, a copy of the collective agreement or extracts of the articles you allege have been breached. As well, attach all documents relevant to the union’s handling of your issue, such as a copy of the grievance, responses to the grievance, if any, communications and correspondence with union representatives, etc.
Be sure to attach a copy of each document with this complaint form.

VI–Timeliness

Section 97(2) of the Code requires you to file a complaint within 90 days after the date when you knew, or ought to have known, of the action or circumstances giving rise to your complaint. On what date did you know of the union’s action or the circumstances giving rise to your complaint?
Although section 16(m.1) of the Code allows the Board to extend the 90-day time limit set out in section 97(2), the Board will only do so in exceptional circumstances. If you want the Board to consider extending the 90-day time limit, please explain the exceptional circumstances that you feel the Board should consider when deciding whether or not to exercise its discretion to extend the time limit.

VII–Hearing

The Board will review and consider all of the material on file, including the submissions of the parties and supporting documentation. There is no requirement for the Board to hold an oral hearing and most often it does not, even if an oral hearing is requested. It is essential that you provide all the material on which you are relying to support your complaint. If you are requesting an oral hearing, please explain why you think it is necessary.

VIII–Remedies

What specific remedies are you seeking?

IX–Other

Is there any other relevant information you would like to put before the Board in support of your duty of fair representation complaint?

The personal information provided on this form is collected solely for the purpose of administering the Canada Labour Code and will be used for the purpose of settling or adjudicating matters that come before the Board. The personal information collected is described in the Personal Information Bank CIR PPU 005 (Violations of the Canada Labour Code) and may be accessed by contacting the Board. The complainant is hereby informed that some or all of this information may appear in the Board’s written reasons for decision and that such decisions may be posted in full on the Board’s Website.

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